Smith v. Smith

• Decision Date: 18 March 1959
• Docket Number: No. 172,172
• Citation: 249 N.C. 669,107 S.E.2d 530
• Court: North Carolina Supreme Court
• Parties: Helen W. SMITH, Petitioner, v. John B. SMITH and Minnie M. Smith, Defendants.

Page 530

107 S.E.2d 530

249 N.C. 669

Helen W. SMITH, Petitioner, v. John B. SMITH and Minnie M. Smith, Defendants.

No. 172

Supreme Court of North Carolina.

March 18, 1959

Max L. Childers, Henry L. Fowler, Jr., Mount Holly, and Hugh W. Johnston, Gastonia, for plaintiff, appellant.

Ernest R. Warren and Julius T. Sanders, Gastonia, for defendants, appellees.

MOORE, Justice.

Before reaching the main question involved, it is thought advisable to dispose of two preliminary matters.

1. The plaintiff did not file a reply and did not plead as an estoppel the admission of the defendant John B. Smith in his answer in a former suit for alimony, that he and plaintiff owned the locus in quo as tenants by the entireties.

'An estoppel is new matter and must generally be pleaded as a defense, and no advantage can be taken of it under a general denial; and this applies to estoppels by record or judgment, estoppels by deed, and estoppels in pais, or equitable estoppels. ' An estoppel which 'shutteth a man's mouth to speak the truth' should be pleaded with certainty and particularity. The court should be able to see from the pleadings what facts are relied upon to work the estoppel.' When a party has an opportunity to plead an estoppel, and omits to do so, he waives the benefit of it; * * * if the party seeking the benefit of the estoppel will not rely upon it, he will answer to the fact and again put it in issue, the estoppel, when offered in evidence to the jury, loses its conclusive character, becomes mere evidence and like all other evidence may be repelled by opposite proof, * * *' McIntosh, North Carolina Practice and Procedure (Second Edition), Vol. 1, Sec. 1236(7), pp. 673, 674. Miller v. New Amsterdam Casualty Co., 245 N.C. 526, 96 S.E.2d 860; Wilkins v. Suttles, 114 N.C. 550, 19 S.E. 606.

2. The defendants alleged in their further answer the mere conclusion that plaintiff's name was inserted in the deed from Minnie M. Smith 'through error.' Such allegation is insufficient to support a reformation of the deed for mutual mistake of fact, for the mistake on one part and fraud on the other, or for mistake of the draftsman.

'The party asking for relief, by reformation of a deed or written instrument, must allege and prove, first, that a material stipulation, as alleged, was agreed upon by the parties, to be incorporated in the deed or instrument as written; and, second, that such stipulation was omitted from the deed or instrument as written, by mistake, either of both parties, or of one party, induced by the fraud of the other, or by the mistake of the draftsman. Equity will give relief by reformation only when a mistake has been made, and the deed or written instrument, because of the mistake, does not express the true intent of both parties. The mistake of one party to the deed or instrument alone, not induced by the fraud of the other, affords no ground for relief by reformation.' Crawford v. Willoughby, 192 N.C. 269, 271, 134 S.E. 494, 495.

'The answer must contain any new matter relied on by the defendant as constituting an affirmative defense. [G.S. § 1-135.] Setting forth new matter as a defense is an affirmative pleading on the part of the defendant and the facts should be alleged with the same clearness and conciseness as in the complaint.' Cohoon v. Swain, 216 N.C. 317, 320, 5 S.E.2d 1, 3; McIntosh, North Carolina Practice and Procedure (Second Edition), Vol. 1, Sec. 1236, p. 668.

The main question involved on this appeal is whether or not the plaintiff was a tenant in common with the defendants in the 7.14 acre tract described in the petition at the time of the institution of the proceeding. Smith v. Smith, supra.

If the deed from Minnie M. Smith to J. B. Smith and wife, Helen W. Smith, vested in the grantees an estate by the entireties, the answer is that she was a tenant in common at the time the proceeding was instituted. Plaintiff and John B. Smith were divorced 3 November, 1955. 'An absolute divorce destroys the unity of husband and wife and therefore converts an estate by the entirety into a tenancy in common.' Davis v. Bass, 188 N.C. 200, 207, 124 S.E. 566, 570.

In order to determine the intent and effect of the deed from Minnie M. Smith to John B. Smith and wife, Helen W. Smith, it must be considered in conjunction with the deed from John B. Smith and wife, Helen W. Smith. These deeds together constitute a 'simultaneous transaction.' All instruments executed at the same time and relating to the same subject may be construed together in order to effectuate the intention. Sandlin v. Weaver, 240 N.C. 703, 83 S.E.2d 806; Howell v. Howell, 29 N.C. 491.

In construing a deed and determining the intention of the parties, ordinarily the intention must be gathered from the language of the deed itself when its terms are unambiguous. However, there are instances in which consideration should be given to the instruments made contemporaneously therewith, the circumstances attending the execution of the deed, and to the situation of the parties at the time. '* * * it is an elementary rule of construction that the intention of the parties shall prevail, unless it is in conflict with some unyielding canon of construction or settled rule of property or is repugnant to the terms of the grant. Such intention as a general rule must be sought in the terms of the instrument; but if the words used leave the intention in doubt resort may be had to the circumstances attending the execution of the instrument and the situation of the parties at the time, the tendency of modern decisions being to treat all uncertainties in a conveyance as ambiguities to be explained by ascertaining in the manner indicated the intention of the parties.' Seawell v. Hall, 185 N.C. 80, 82, 116 S.E. 189, 190. See also Monk v. Kornegay, 224 N.C. 194, 29 S.E.2d 754.

The practical construction placed upon a written instrument by the parties thereto before the controversy arose is ordinarily given great weight by the courts in arriving at the true meaning and intent of the language employed in the contract. Banks v. Tennessee Mineral Products Corp., 202 N.C. 408, 163 S.E. 108.

'A conveyance of land must be in writing and comply with certain formalities, and its principal function is to evidence the transfer of a particular interest in land. * * * an agreement which contradicts express provisions of the deed * * * which 'would change the essential nature' of a deed absolute, may not be shown.' Stansbury, North Carolina Evidence, Sec. 255, pp. 512 and 514. The Parol Evidence Rule applies in litigation involving the construction of the nature and quality of estates conveyed by deed. Heaton v. Kilpatrick, 195 N.C. 708, 143 S.E. 644; Flynt v. Conrad, 61 N.C. 190. A conveyance cannot be contradicted by a parol agreement, nor, in the absence of proof of fraud, mistake, or undue influence, can a deed solemnly executed and proven be set aside by parol testimony. Walters v. Walters, 172 N.C. 328, 90 S.E. 304; Lytton Mfg. Co. v. House Mfg. Co., 161 N.C. 430, 77 S.E. 233. 'It is well-nigh axiomatic that no verbal agreement between the parties to a written contract, made before or at the time of the execution of such contract, is admissible to vary its terms or to contradict its provisions. (Citing authorities) As against the recollection of the parties, whose memories may fail them, the written word abides. (Citing authority) The rule undoubtedly makes for the sanctity and security of contracts.' Jefferson Standard Life Insurance Co. v. Morehead, 209 N.C. 174, 175, 183 S.E. 606, 607, and cases there cited.

'Where facts are found by the court, if supported by competent evidence, such findings are as conclusive as the verdict of a jury.' (Emphasis ours.) City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486, 491. In the instant case, the declaration of the parties after the controversy arose and their testimony as to their intentions with respect to the effect of the deeds and the estates thereby created, may not be considered in so far as such tend to contradict the plain provisions of the deeds themselves. The deeds, the circumstances attending the execution thereof, and the situation of the parties at the time are to be considered.

The question of 'consideration' is unimportant in this case. A close blood relationship constitutes a good consideration for conveyance of land. And a deed in proper form is good and will convey the land described therein without any consideration, except as against creditors or innocent purchasers for value. Little v. Little, 205 N.C. 1, 169 S.E. 799; Exum v. Lynch, 188 N.C. 392, 125 S.E. 15; Howard v. Turner, 125 N.C. 107, 34 S.E. 229.

The following facts are important in the decision of this case. Minnie M. Smith and John B. Smith are mother and son. Prior to the execution of the deeds in question they were owners in fee and tenants in common of the tract of land of which the locus in quo was a part, and Minnie M. Smith had a dower right in the one-half undivided interest of John B. Smith. The deeds were made less than two months after the marriage of John B. Smith to the plaintiff. Minnie M. Smith had been in possession of the entire tract of land prior to the execution of the deeds. John B. Smith and wife, Helen W. Smith, conveyed the entire tract of land to Minnie M. Smith. And thereupon Minnie M. Smith conveyed 7.14 acres thereof to John B. Smith and wife, Helen W. Smith. The deeds were dated, executed and filed for recordation simultaneously. The deed to Minnie M. Smith appears first in the registry, and the deed to John B. Smith and wife, Helen W. Smith, follows immediately.

Where a conveyance of land is made to a husband and wife, nothing else appearing, it creates an estate by the entireties. Davis v. Bass, supra.

But the defendants contend that the deeds in question in this case were for the sole purpose of partitioning the tract of land owned by them as tenants in common,...